Chap. XXXVIII. § 3. Where issued against a personal representative; or a purchaser. Where indorsed for too large a sum. Where the writ is issued against a personal representative, at the instance of a legatee, or person claiming a share of the residue, it must be marked for the whole amount due from the defendant: not to the plaintiff only, but to all the other persons interested in the estate;1 and it seems that the Court will sometimes extend the amount of the security required, beyond that of the debt sworn to, for the purpose of covering the costs of proceedings at Law.2 In Boehm v. Wood3 also, the writ was marked for the full amount of the purchase-money, though the defendant was entitled to an abatement: the amount of which, however, had not been ascertained. Where the writ has been indorsed for a larger sum than is really due, there is no doubt that the Court will make an order that the security shall be given for so much only as is really due, without quashing the writ; and that, too, upon the hearing of a motion to quash it." Duty of sheriff. Doors not to be broken open. In what manner de fendant may obtain his discharge. SECTION III. - How executed. Το carry this process into effect, the writ must be delivered to the proper sheriff,5 or other officer, with instructions for executing it. By the terms of the writ, the sheriff is to cause the party, personally, to come before him, and give sufficient bail or security in the sum indorsed on the writ, that he will not go, or attempt to go into parts beyond the seas, without leave of the Court; and, on his refusal, he is to commit him to the next prison.* It is said, that it is an abuse of this process to break open doors, and to take the party in bed: however, where this had been done, the Court refused to set him at liberty." When a caption is made, the defendant, to obtain his discharge out of custody, must execute a bond, with two sufficient sureties, to the sheriff, in double the sum marked on the writ, conditioned 1 Pannell v. Tayler, T. & R. 100; see Boovey v. Sutcliffe, 2 Eq. Rep. 706, V. C. W. 2 Bonner v. Worthington, Reg. Lib. 5 As to the delivery of writs, see ante, 6 See form of writ, Vol. III. 7 Wyatt's P. R. 290; Curs. Canc. 455; see Gile v. Devens, 11 Cush. 59; Percival v. Stamp, 9 Exch. 167. But see, in reference to acts done through an abuse of process, Ilsley v. Nichols, 12 Pick. 270; where an attachment was held unlawful and invalid, when made by an officer who had broken open a dwelling-house by forcing an outer door, against the prohibition of the owner, with the direct and avowed purpose of making such attichment of the owner's goods in the dwellinghouse. See also the authorities cited and commented on by the Court, in Il-ley v. Nichols, ubi supra. As to the mode of executing writs, see ante, p. 466. 8 In Gibert v. Colt, 1 Hopk. 500, the Court held, that the sheriff is not to double the sum marked, but is to take the bond in the sum directed by the Court, without any addition. See ante, 1709, note. See the form of a bond to be executed by the defendant, on a writ of ne exeat being served on him, set out in Cox v. Scott, 5 Harr. & J. 334. not to go or attempt to go into parts beyond the seas, or into Scotland, without the leave of the Court.1 As the sheriff is directed by the writ, to cause the defendant to give sufficient bail or security, he is not bound to take any security but what he may be satisfied is likely to prove effective. Thus, where the writ was marked in the sum of 36,000l., and the defendant, after he was taken into custody, tendered to the sheriff, as a security, the bond of himself and two sureties, in the sum of 36,000, and a deposit of that sum in the Bank of England, in the joint names of the sheriff and sureties, which the sheriff refused to accept, and, although he afterwards proposed to release the defendant out of custody, upon his finding four sureties, in 36,0007. each, yet he ultimately insisted that the 36,0007. should be paid into his hands before the defendant was discharged, Lord Eldon held, that the sheriff was right in the course he had pursued for whatever the sheriff does, under a writ of ne exeat, is upon his own responsibility; and what he had done, was merely to require a sufficient security for his having the defendant to produce. Chap XXXVIII. § 3. Security isfactory to must be sat sheriff. From this it appears that, instead of bail, the sheriff may take Sheriff may a deposit of the amount indorsed upon the writ.* take a de posit of indorsed. Return of The sheriff, after he has executed the writ, ought to return it: amount indorsing upon it a proper return of what he has done. If he has taken bail, it may be in the following form: "I have caused the writ. within named A. B. personally to come before me, and he found bail in the penalty of £, according to the command of this writ." If, instead of taking security according to the direction of the writ, the sheriff takes a deposit of the amount indorsed on the writ, he should make a return to that effect; and where the Sheriff omitted to do so, the Lord Chancellor ordered him to make his return within a given time. 11 Turn. & Ven. 990; see McGee v. McGee, 8 Geo. 295. In Ma-sachusetts, the Supreme Court may discharge the defendant from imprisonment on a writ of ne exeat, upon an application by him to the Court for that purpose, and an examination of the defendant by a Master in Chancery, in the same manner as if he was a poor prisoner committed in execution, or arrested on mesne process for debt. Rice v. Hale, 5 Cush. 238. 2 See Brayton v. Smith, 6 Paige, 489. The obligations devolved upon sureties entering into a bond conditioned to obey such a writ, bear a close resemblance to the duties and responsibilites of bail at Common Law. They undertake that the defendant shall be responsible for the per formance of the orders and decrees of the 3 Boehm v. Wood, T. & R. 332, 340. 1819. A. 233. 5 Impey, Off. Sheriff, p. 411. 6 Bonner v. Worthington, Reg. Lib. 1819, A. 233. As to compelling the sheriff to return a writ, see ante, p. 470. Chap. XXXVIII. § 4. Consequence of defendant going abroad, before discharge. Application for discharge: how made. For irregularity. Upon merits. SECTION IV.- How discharged. After the party has been taken upon the writ, and given security, he must be careful not to go abroad, without previously applying to the Court to discharge it: otherwise, the Court, it seems, will order the sureties to pay the money into Court within a certain time, although the defendant's going abroad was the consequence of a mistake as to the effect of the bond.1 The party may apply by motion, with notice, to discharge the writ, on the ground of irregularity, or upon the merits, supported, if necessary, by evidence: which is usually given on affidavit.3 The defendant may also, by analogy, if he has not been interrogated, put in a voluntary answer: which he will be entitled to read in opposition to the plaintiff's affidavits.* If security has been given, the notice of motion should state that application will be made, as well for the discharge of the writ, as that the bond may be given up to be cancelled.5 If, upon an application to discharge or quash the writ on the ground of irregularity, the Court thinks that it has been improperly issued, it will at once order it to be discharged. It will not, however, discharge the writ, merely because it appears to have issued for a sum exceeding that for which it can be sustained; but, in such cases, the amount for which it has been marked will be reduced. Nor will the Court discharge a writ of this nature, obtained upon affidavits substantiating declarations and acts of the defendant as evidence of his intention to go abroad, upon a counter affidavit by the defendant denying the intention. The Court has also refused to quash the writ, upon the defendant's affidavit that no debt was due, and that the plaintiff had made admission to that effect the plaintiff having, by his affidavit, sworn positively to there being a debt. The Court will discharge the writ upon the merits, whenever it 1 Musgrave v. Medex, 1 Mer. 49; Utten v. Utten, ib. 51. 2 See MacDonough v. Gaynor, 3 C. E. Green (N. J.), 249. 3 Grant v. Grant, 3 Russ. 598, 602; and see Hyde v. Whitfield, 19 Ves. 342; Flack v. Holm, 1 J. & W. 405, 418; Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W.; Seton, 960. 4 Anderson v. Stamp, 11 Jur. N. S. 169, V. C. W.; 2 H. & M. 576. 5 For form of notice of motion, see Vol. III. The giving the usual security to the sheriff upon a ne exeat, does not preclude the defendant from applying upon the bill only, or upon the coming in of the answer, to have the writ discharged and the bond to the sheriff given up and cancelled. Jesup v. Hill, 7 Paige, 95. The motion should be made without unreasonable delay. And accordingly, where an application to discharge a ne exeat was not made until after the cause had been noticed for a final hearing, it was refused. Miller v. Miller, 1 Saxton Ch. (N. J.) 386. For form of order for discharge upon giving security, see 2 Seton, Dec. (3d Eng. ed.) 959. 6 Grant v. Grant, 3 Russ. 598, 611. 7 Whitehouse v. Partridge, 3 Swanst. 365, 375; Amsinck v. Barklay, 8 Ves. 594, 597. 8 Jones v. Alephsin, 16 Ves. 470. appears either that the plaintiff has no case, or that the defendant is not going out of the jurisdiction; and this it will do either absolutely, or conditionally: that is, upon the defendant's giving security with two sureties to answer such sum as may be found due from him in the cause.2 Chap. XXXVIII. § 4. The Court will also discharge the writ, upon the defendant's Upon paypaying into Court the sum for which the writ is marked.3 Where the writ is directed to issue, until answer and further order, the Court will not discharge the writ merely upon the coming in of the answer, if it appears, upon the merits of the case, that there will be necessarily decreed things for the defendant to do at the hearing. ment into Court. Where issued till answer and further order. decree. It has also been decided, that a surety on a writ of ne exeat Discharge of regno will not be discharged upon the principal being, by a subse- surety: quent process of the Court, committed to prison: as the surety is then in no danger. Where the sureties applied to be discharged, not before on the ground that the defendant was in custody for want of an answer, Lord Eldon refused to discharge them: observing, that there was no instance of it; and that, on the contrary, there was a case in which the Court had refused to discharge them. These last-mentioned applications were previous to the decree; but where, after a decree against the defendant for the same matter as that for which the writ of ne exeat issued, the defendant, was Secus, after in contempt, and in custody for not performing the decree, an 1 Leo v. Lambert, 3 Russ. 417; Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W. For the order in the latter case, see Seton, 960. As to the supporting an application to discharge the writ by affidavits, see Russell v. Ashby, 5 Ves. 98; Boehm v. Wood, T. & R. 332; Fitch v. Richardson, 1 Morris, 245. Affidavits may be read both in support of and against the motion to discharge the writ. Flack v. Holm, 1 J. & W. 414; 1 Hoff. Ch. Pr. 363. And it is open to the defendant by affidavit to deny the allegations on which it was granted. O'Connor v. Debraine, 3 Edw. Ch. 220; Cowdin v. Cram, 3 Edw. Ch. 231. 2 Roddam v. Hetherington, 5 Ves. 91, 95; Boon v. Collingwood, 1 Dick. 115; Atkinson v. Leonard, 3 Bro. C. C. 218, 223. In cases where the Court feels constrained to discharge the writ, it will often require security to abide the decree. MacDonough v. Gaynor, 3 C. Green (N. J.), 249; see Parker v. Parker, 1 Beasley (N. J.), 105. In New York, it is a matter of course to discharge a ne exeat upon the defendant's giving security to answer the plaintiff's bill, where a discovery is necessary, and to render himself amenable to the process of the Court pencing the litigation, and to such process as may be issued to compel a performance of the final 3 Evans v. Evans, 1 Ves. J. 96; Stew- 4 Atkinson v. Bedel, 1 Dick. 98. 5 Le Clea v. Trot, Prec. in Ch. 230. "A bail in this Court, or in the Civil Law, is not discharged upon bringing in the principal, as he is at Common Law. Archepoole contra Burrell, Michas. 23 & 24 Eliz.;" MS. of Sir Geo. Carey, cited Beames on Ne exeat, 84, n. (14). Tothill's note of Archboll v. Barrell, which seems to be the same case, is, however, simply in these words: "A bail in this Court, or in the Civil Law, is discharged upon bringing in the principal, as he may at the Common Law." Tothill, 17; and see Griffith v. Griffith, 2 Ves. S. 400. 6 Stapylton v. Peill, 19 Ves. 615; cited Beames on Ne exeat, 84. decree. Chap. XXXVIII. § 4. security, on payment of the amount thereof, though larger sum due from the principal. order was made, on the application of the sureties, that they should be discharged, and the bond as to them cancelled.1 If the defendant pays to the plaintiff the sum for which the Discharge of defendant has given security on a writ of ne exeat, the writ and security will be discharged, as to the principal as well as sureties, notwithstanding that it may appear from the proceedings in the cause that a much larger sum is due from the defendant to the plaintiff. Where, subsequently to the issue of the writ against a defendant, he took the benefit of the Insolvent Debtors' Acts, the writ was discharged upon his paying the costs of the applicaa defendant, tion to discharge the writ, and relieving the plaintiff from all liability on his undertaking as to damages, and from any action or other proceeding with respect to the writ.3 Discharge of writ against where he becomes insolvent. Discharge of writ on terms of no action being brought; or of inquiry as to dam ages sustained. Discharge after a ne exeat, no ground of discharge from subsequent arrest at Law for same demand. Effect of amendment of bill. When an application to discharge the writ is granted, the discharging order ought also to restrain the person against whom the writ has issued from bringing an action for false imprisonment: otherwise, in the event of such an action being brought, although probably in all cases the Court would stop the action, yet the costs of the application for that purpose would be at the expense of the person by whom the writ had been obtained.* Where the usual undertaking as to damages has been given, the Court will, if it considers that the writ has been improperly obtained, direct an inquiry as to the damages sustained by the defendant, and order payment of the amount certified in respect thereof.5 The Court will not, after the writ has been discharged in Equity, interfere to direct the party to be discharged from a subsequent arrest at Law for the same demand; but will leave it to the Court of Law to determine whether, under the circumstances, the Common Law process ought to be made available. A writ of ne exeat will not be discharged on the mere ground that, since it was ordered, the plaintiff has amended his bill: unless it can be shown that the amendments have varied the case, as originally stated. The Court, therefore, will not make a special order, giving the plaintiff liberty to amend, "without prejudice to the ne exeat; "but will leave it to him to obtain the common order, if he thinks he can do so with safety." 1 Debazin v. Debazin, 1 Dick. 95; Reg. Lib. 1743, A. 64. 2 Baker v. Jefferies, 2 Cox, 226; Beames on Ne exeat, 86. 3 James v. North, 5 Jur. N. S. 84; 7 W. R. 150, V. C. K. 4 Darley v. Nicholson, 2 Dr. & War. 86. 5 Sichell v. Raphael, 4 L. T. N. S. 114, V. C. W. For the order in that case, see Seton, 960, No. 3. 6 Walker v. Christian, 7 Sim. 367. 7 Grant v. Grant, 5 Russ. 189. |